Daniel Oran - Oran's Dictionary of the Law

468 Strict foreclosure

words in the contract should be interpreted in the way least favorable to the side that wrote the words.

Strict foreclosure A creditor’s right, in some circumstances, to take back property and cancel the debt. In these situations, the property acts as an exact cancellation of the debt, and neither the creditor nor the debtor can sue the other for any additional money.

Strict liability 1. The legal responsibility for damage or injury, even if you are not at fault or negligent. For example, a manufacturer may be liable for injuries caused by certain defective products even if the person hurt cannot prove exactly how the manufacturer was careless. 2. Guilt of a criminal offense even if you had no criminal intention

(mens rea). Only minor offenses (such as speeding) and special regulatory offenses (such as polluting) can be strict liability offenses. See also statutory crime.

Strict scrutiny test The principle that a state law (or an administrative agency regulation) that affects fundamental individual rights is valid only if it accomplishes important state objectives in the least restrictive way possible. Compare with rational basis test.

Stricti juris (Latin) Determined by strict construction (see that word). Strike 1. Take out. For example, to strike a word is to remove it from a document. 2. Employees stopping, slowing down, or disrupting work to win demands from an employer. 3. An economic strike is a strike that attempts to improve such things as wages, hours, and working conditions, as opposed to a strike precipitated by an employer’s unfair labor practices; a general strike is throughout an industry or country; a jurisdictional strike protests assignment of work to members of another union; a secondary strike is by one union against an employer who does business with another employer whose employees are on strike; and a wildcat strike is unauthorized by union officials. 4. See also sit-down strike, sympathy strike, blue flu, job action, recognition, and work-to-rule. 5. In some states, a motion to strike (the evi-

dence) is similar to a motion for judgment (of acquittal).

Strike suit A stockholder’s derivative suit (see that word) brought purely for the gain of the stockholder or to win large lawyer’s fees for a stockholder who is a lawyer.

Striking a jury Forming a jury for a particular case by choosing persons from among those on a jury panel. See also struck jury.

Striking price The price at which a person can exercise an option (see that word) to buy or sell a commodity.

Subinfeudation 469

String citation A series of case names and citations (see that word) that is printed after an assertion or legal conclusion in order to back it up.

Strip The principal-only or interest-only part of a security that has been split into two parts.

Strong-arm provision A part of the federal bankruptcy law that gives a bankruptcy trustee powers equal to those of a powerful secured creditor (whether or not such creditor actually exists) to help the trustee gather all of the bankrupt person’s property.

Struck jury 1. A jury, not from the regular jury panel, chosen for a special case. But see no. 2. 2. The jury as chosen, as opposed to the panel from which it is chosen. 3. A jury chosen after each side has a chance to delete a certain number of names from a list of potential jurors.

Style Official name.

Sua sponte (Latin) 1. Of his or her own will; voluntarily. 2. On a judge’s own motion, without a request from one of the parties.

Sub Under, below, secondary, a smaller part.

Sub judice (Latin) “Under judicial consideration.” As yet undecided because a judge is considering it. [pronounce: sub joo-di-see]

Sub modo (Latin) Subject to a restriction.

Sub nom. (Latin) Abbreviation for sub nomine, meaning “under the name of.”

Sub silentio (Latin) “Under silence”; in silence; without taking any notice or giving explicit consideration; having an unstated effect. To overrule sub silentio is to give a result that invalidates a prior case without mentioning that case.

Subchapter C and S corporations See C corporation and S corporation.

Subcontractor A person who contracts to do a piece of a job for another person who has a contract for a larger piece of the job or for the whole job.

Subdelegation Same as delegation (see that word) of authority.

Subdivision Land divided into many lots by a developer and sold to different persons under a common plan.

Subinfeudation The process in the middle ages of kings owning all the land and granting only the use of it to nobles, who then gave use only of smaller parts to others, and so on down several layers. The statute of quia emptores ended this process in England, leaving the power of infeudation (granting feuds, the basis for feudal law) only to the king

470 Subjacent support

and making all lower land transfers more similar to modern sales and grants.

Sub jacent support The support given to the surface of land by the soil and other material lying below the surface. There usually exists a right to have land supported from below, so if a person digs a hole on the person’s own land that causes another’s land to cave in far from the hole, the person will be responsible for the damage. Compare with lateral support.

Subject 1. “Subject to” means subordinate to, governed by, affected by, limited by, and other similar things. Use a more precise word if possible. 2. “Subject” in front of another word (“the subject contract”) is jargon used to indicate that the other word was previously mentioned. Use the word alone (“the contract”) or the precise thing (“the Sept. 1 Jones contract”). 3. For subject matter jurisdiction, see jurisdiction.

Subletting A tenant’s renting of property (or part of a property) to another person (a subtenant or sub lessee), either for the rest of the tenant’s own lease or for a portion such as a “summer sublet.”

Submission agreement Evaluation agreement.

Submit 1. Put into another’s hands for a decision. If a case is good enough to be submitted for decision, it is submissible. 2. Allow; yield to another’s authority. 3. Attempt to introduce evidence. 4. Offer something for approval.

Subordination 1. Making something weaker or lesser than something else. For example, agreeing, in a signed document, that your claim or interest (for example, a lien) is weaker than another one and can collect only after the other one collects. 2. Any ranking of rights. 3. Not subornation (see next entry).

Subornation of perjury 1. The crime of asking or forcing another person to lie under oath. 2. Not subordination. [pronounce: sub-or- nay-shun]

Subpoena A court’s order to a person that he or she appear in court to testify (give evidence) in a case. Some administrative agencies may also issue subpoenas. [pronounce: suh-pee-na]

Subpoena duces tecum A subpoena (see that word) by which a person is commanded to bring certain documents to court or to an administrative agency. [pronounce suh-pee-na due-kes tay-kum]

Subrogation The substitution of one person for another in claiming a lawful right or debt. For example, when an insurance company pays its policy holder for damage to his or her car, the insurance company becomes subrogated to (gets the right to sue on or collect) any claim

Subtenant 471

for the same damage that the policy holder has against the person who hit the car.

Subscribe 1. Sign a document (as the person who wrote it, as a witness, etc.). 2. Formally agree, usually by signing a stock subscription agreement, to purchase some initial stock in a company. 3. The person who does no. 1 or no. 2 is a subscriber and the act is subscription. 4. For subscription right, see pre-emptive right under pre-emption. 5. A subscription warrant is a long-term option to buy stock at a fixed price. It may come with a bond or a share of preferred stock. 6. Agree to contribute to a charity.

Subsidiary 1. Under another’s control; lesser. 2. Short for subsidiary corporation, a corporation that is owned by another corporation (the parent corporation).

Substance 1. Reality, as opposed to mere appearance. 2. Subject, meaning, or legal importance. Contrast form. 3. See substantive law.

Substantial 1. Valuable; real; worthwhile. 2. Complete enough. For example, substantial performance of a building contract may exist when there are defects but the building is fit for its intended use. 3. “A lot,” when it is hard to pin down just how much “a lot” really is. For example, substantial evidence is more than a mere scintilla of evidence but less than a full preponderance of evidence. Not substantive evidence. 4. For substantial capacity, see Model Penal Code under insanity no. 2.

Substantiate Establish the existence of something or prove its truth; verify. See also corroborate.

Substantive due process See due process and substantive law.

Substantive evidence Evidence used to prove facts rather than to discredit or back up a witness’s believability. Not substantial evidence.

Substantive law The basic law of rights and duties (contract law, criminal law, accident law, law of wills, etc.) as opposed to procedural law

(law of pleading, law of evidence, law of jurisdiction, etc.).

Substantive rule A change in an existing regulation. Compare with interpretive rule for more detail.

Substituted basis The cost of a property for tax purposes when it is transferred in a like-kind exchange (or certain other ways) and the old owner’s basis becomes the new owner’s basis.

Substituted service Service of process by any means other than personal delivery; for example, by mail, publication in a newspaper, or service on a member of the family at the person’s usual residence.

Subtenant See subletting.

472 Subtraction

Subtraction The old offense of keeping from another person money, rights, or services that the person was entitled to.

Subversive activities Espionage, treason, sedition, sabotage, and other acts to undermine a government.

Succession 1. The transfer of a dead person’s property. Intestate succession (or hereditary succession) is the transfer of a dead person’s property by law to heirs if the person does not leave a will. A succession law is an inheritance law, and a successor is a person who gets a dead person’s property. 2. Taking over a predecessor’s official duties. 3. The continuation of a corporation even though its owners, directors, and managers change.

Sudden emergency (or peril) doctrine See emergency doctrine.

Sudden heat of passion See heat of passion.

Sue To start a civil lawsuit.

Sue out Ask a court to issue a writ, a court order, or other court papers.

Suffer Allow or permit something to happen. To suffer something usually means to willingly permit it, but in the case of sufferance, it may imply neglecting to enforce a right.

Sufficient cause 1. Legal cause to remove a public official from office. It must be for something basic to the person’s job qualifications as they affect an important public interest. 2. Probable cause. 3. A good legal reason to do something.

Suffrage The right to vote.

Suggestion A mere hint or insinuation that does not make a fact probable or even possible, but only introduces the idea that it might be possible; less than an inference or presumption.

Sui generis (Latin) One of a kind. [pronounce: sue-ee jen-er-is]

Sui juris (Latin) “Of his or her own right.” Possessing full civil and political rights and able to manage his or her own affairs.

Suicide 1. Killing yourself. Attempted suicide may be a crime, as may be the accidental killing of another person during an attempt or persuading another person to attempt suicide. 2. A person who kills him or herself.

Suit A lawsuit; a civil action.

Suit money Lawyer’s fees and costs that a judge orders one side in a lawsuit to pay to the other.

Suitor A party or litigant in a lawsuit; usually the plaintiff.

Suits in Admiralty Act (46 U.S.C. 741) A 1920 statute, similar to the Federal Tort Claims Act, that permits maritime (seagoing) suits against the U.S. government.

Sunset law 473

Sum certain An exact amount of money, usually of money owed. An amount owed may be a sum certain even if it includes interest, costs, etc., so long as these added amounts are exactly computable. Having a sum certain is a legal requirement for such things as the negotiability of a negotiable instrument or for granting certain judgments.

Summary Short, concise, and immediate, with formalities reduced or eliminated.

Summary judgment A final judgment (victory) for one side in a lawsuit (or in one part of a lawsuit), without trial, when the judge finds, based on pleadings, depositions, affidavits, etc. that there is no genuine factual issue in the lawsuit (or in one part of the lawsuit).

Summary jury trial Alternative dispute resolution in which the judge orders the two sides in a complex case to present their most important facts to a small jury, with admission of evidence either agreed to or decided by the judge in advance. The two sides may agree in advance to be bound by the verdict or may interview the jurors and use the results to negotiate a settlement. Compare minitrial.

Summary proceeding A proceeding in which normal formalities are either reduced or eliminated; for example, a court proceeding without pleadings or a jury, such as a contempt hearing or the procedure in most small claims courts.

Summary process 1. Summary proceeding. 2. Summary judgment.

3. Taking action to assert a legal right without using the courts at all; for example, by recaption. 4. Slang for an eviction by no. 1, no. 2, or no. 3.

Summing up (or summation) Each lawyer’s presentation of a review of the evidence at the close of a trial.

Summons 1. A writ (a notice delivered by a sheriff or other authorized person) informing a person of a lawsuit against him or her. It tells the person to show up in court at a certain time or risk losing the suit without being present. 2. Any formal notice to show up in court (as a witness, juror, etc.).

Sumptuary laws Laws controlling the sale or use of certain socially undesirable, wasteful, and harmful products.

Sunk costs Past spending that no longer directly affects current decisions. For example, the original (sunk) cost of a fully paid car is not as important as its current sale value or its tax value.

Sunset law A law that puts an administrative agency automatically out- of-business unless the law is renewed after a careful reexamination of the agency by the legislature.

474 Sunshine law

Sunshine law A law requiring open meetings of government agencies or allowing (or assisting) public access to government records. See also Freedom of Information Act.

Suo nomine (Latin) In his or her name.

Superfund The pot of money, originally established by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, to help clean up toxic waste sites. CERCLA also made all contributors to the sites liable for cleanup.

Superior 1. Higher. However, a superior court is sometimes a state’s lowest court, sometimes its highest, and sometimes an intermediate court. 2. Having control. For example, a superior estate (which might be quite small) might have an easement against an inferior estate (which might be quite big). These are generally called dominant and servient estates. See easement and dominant.

Supermajority A majority far above 50 percent. This vote total is required for many important, unusual actions, such as change to a constitution.

Superpriority A priority (see that word) higher than first priority. The bankruptcy code has an even higher super-superpriority.

Supersede 1. Set aside; wipe out; make unnecessary. 2. Replace one law or document by another later one.

Supersedeas (Latin) Describes a judge’s order that temporarily holds up another court’s proceedings or, more often, temporarily stays a lower court’s judgment. For example, a supersedeas bond may be put up by a person who appeals a judgment. The bond delays the person’s obligation to pay the judgment until the appeal is lost. [pronounce: sue-per-see-dee-as]

Superseding cause Intervening cause.

Supervening New; newly effective; interposing. For supervening cause, see intervening cause, and for supervening negligence, see last clear chance doctrine.

Supervisor 1. An individual or a member of a board that runs a county or town in some states. 2. Anyone with authority over others, but in labor law this does not include low-level persons who do not need to use “independent judgment” in their supervision of others.

Supplemental pleading A pleading that brings up events that happened after the start of the lawsuit.

Supplementary proceedings A judgment creditor’s (see that word) in-court examination of the debtor and others to find out if there is any money or property available to pay the debt.

Surprise 475

Support 1. A support obligation is the obligation to provide for your immediate family. 2. Support payments are payments made to a wife, husband, child, etc. (with or without court supervision or formal agreement) to meet your support obligations. 3. See lateral support and subjacent support.

Suppress 1. To suppress evidence is to keep it from being used in a criminal trial by showing that it was gathered illegally. This can happen at trial or at a pretrial suppression hearing. 2. Refuse to give evidence in a criminal trial. This may be a crime. 3. Hold back evidence favorable to a defendant. This may be unconstitutional if done by the prosecution.

Sup-pro Short for supplementary proceedings.

Supra (Latin) Above; earlier (in the page, in the book, etc.). Supremacy clause The provision in Article VI of the U.S. Constitution

that the U.S. Constitution, laws, and treaties take precedence over conflicting state constitutions or laws.

Supremacy of law Describes a government in which the highest authority is in law, not in persons.

Supreme Court The highest of the United States courts (see that word) and the highest court of most, but not all, of the states.

Surcharge 1. An extra charge on something already charged. 2. A special payment, such as the personal payment a trustee must make to a trust if he or she has negligently handled the account and it has lost money. 3. An overcharge. A charge beyond what is right or legal. 4. See also surtax.

Surety A person or company that insures or guarantees that another person’s debt will be paid by becoming liable (responsible) for the debt when it is made. The relationship among debtor, creditor, and surety is a suretyship. See also guaranty. [pronounce: shoor-e-tee]

Surface A vague word which, when used in land deeds, may mean anything from “the top few feet of land with no mineral rights” to “all the land and minerals except oil and gas.”

Surplus Money left over. A corporation’s surplus, or its “capital surplus,” is defined in several different, overlapping, and sometimes conflicting ways including “assets minus liabilities,” “assets minus stock value,” etc.

Surplusage 1. Extra, unnecessary words, or matter not relevant to the case, in a legal document. 2. Surplus.

Surprise 1. The situation that occurs when one side in a trial, through absolutely no fault of its own, is faced with something totally unexpected that places an unfair burden on its case. When this happens, a

476 Surrebutter and surrejoinder

continuance is often granted and, occasionally, a new trial is granted. 2. The situation that occurs when a witness gives unexpected testimony that hurts the side that called the witness. That side may then impeach its own witness with prior inconsistent statements.

Surrebutter and surrejoinder Two old forms of pleading no longer used. Modern court practice usually stops with two or three pleadings, not the five or more it would take to reach these.

Surrender Give back; give up; hand back; return.

Surrender value The value of a life insurance policy if it is cashed in or borrowed against.

Surrogate 1. The name for the judge of a probate court in some states. 2. A person who stands in for, takes the place of, or represents another.

Surtax 1. An additional tax on what has already been taxed. 2. A tax on a tax. For example, if you must pay a hundred dollar sales tax on a one thousand dollar purchase (10 percent), a 10 percent surtax would require an additional ten dollar payment, not an additional hundred dollar payment.

Survey 1. Measure or map land boundaries. 2. An investigation, examination, or questioning, such as an opinion poll.

Survival statute A state law that allows a lawsuit to be brought by a relative for a person who has died. The lawsuit is based on the cause of action the dead person would have had. See also wrongful death action.

Survivorship The right of survivorship is the right of certain property owners, such as joint owners of real estate who outlive other joint owners, to own the property. Joint renters and other joint property holders may have similar survivorship rights.

Suspect classification Making choices (in employment, etc.) based on factors such as race or nationality. These choices, only rarely legitimate, must be strongly justified if challenged. (Gender is a quasisuspect classification that must be justified, but not as strongly, if challenged.)

Suspended sentence A sentence (usually “jail time”) that the judge allows the convicted person to avoid serving (usually if the person continues on good behavior, completes community service, etc.). See also probation.

Suspicion 1. More than a guess, but less than full knowledge. 2. Held on suspicion is being temporarily held by the police without specific charges against you.

Synopsis 477

Sustain 1. Grant. When a judge sustains an objection, he or she agrees with it and gives it effect. 2. Carry on; bear up under. 3. Support or justify. If the evidence fully supports a verdict, it is said to sustain the verdict.

Swear Take an oath; for example, the swearing in of a witness or a person about to become a public official in an official oath-taking ceremony, or the swearing out of a criminal warrant by making a charge under oath.

Sweat equity The increase in property value due to an owner’s own labors.

Sweating Harsh, threatening, or overly aggressive questioning of a criminal suspect.

Sweetheart contract A labor contract containing unusually favorable terms for one side or the other. Sweetheart contracts are occasionally gained by actions unrelated to the employment relationship, such as bribery.

Swift witness A witness who seems overeager to give information or who shows a bias toward one side.

Syllabus A headnote, summary, or abstract of a case.

Symbolic delivery A legally implied delivery of a thing when only a symbol of the thing is actually delivered. For example, delivering a key to a safety deposit box is sometimes considered to be symbolic delivery of the box’s contents.

Symbolic speech Gestures and actions that are meant to communicate a message; for example, holding your nose. Symbolic speech is protected as if actual speech under the First Amendment to the U.S. Constitution.

Sympathy strike A strike by one union to help another union’s strike. These are now mostly prohibited.

Synallagmatic contract Bilateral contract.

Syndicalism The theory that trade unions should control the means of production and, ultimately, the government. Criminal syndicalism is advocating a crime, sabotage, etc., to take over an industry or affect the government.

Syndicate 1. A joint adventure. 2. Any business venture, whether permanent or temporary, incorporated or not. 3. “The syndicate” is slang for organized crime.

Synopsis A summary of a document, book, etc.